PRIOR HISTORY: [***1]
Plymouth.
Civil action commenced in the Superior Court Department on October 9, 1980.
The case was heard by Keating, J., on a motion for summary judgment.
After review was sought in the Appeals Court, the Supreme Judicial Court granted direct appellate review on its own initiative.

SYLLABUS: On an application under G. L. c. 123, § 9 (b), by a patient seeking release from Bridgewater State Hospital to which he had been committed following conviction on a criminal charge, the burden of proof was on the patient to establish the conditions warranting his release, and thus summary judgment against the patient was appropriate where it appeared that no evidence he could offer in support of his application would present a genuine issue of material fact. [814-815]

On an application under G. L. c. 123, § 9 (b), for discharge from commitment to the Bridgewater State Hospital, no constitutional due process guaranty was abridged by placing the burden of proof on the patient to establish the conditions [***2] warranting his release, since periodic judicial review of the patient’s confinement is mandated, in any event, by provisions of G. L. c. 123, §§ 8 and 15 (e), which place the burden of proof on the Commonwealth to establish the need for continued confinement. [815-818]

Where an indigent mental patient applying under G. L. c. 123, § 9 (b), for discharge from commitment to a State institution was afforded an independent psychiatric examination pursuant to G. L. c. 123, § 5, the results of the examination, which were not placed in evidence by the applicant, were not properly before the court and should not have been considered by the judge; however, any error was harmless since the absence of any evidence in support of the application warranted summary judgment against the applicant. [818-819]

COUNSEL: Robert L. Marzelli for the plaintiff.
Kim E. Murdock for the Commonwealth.